IN THE MATTER OF R----, 6 IN Dec. 631 (BIA 1955)
IN THE MATTER OF R---- B---- L----, R---- B---- Z----, AND D---- B----Z----. In DEPORTATION Proceedings.
A-8971319, A-8971320 and A-8971321.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board May 25, 1955.
Evidence — Stipulations of fact — Binding until withdrawn.
Where claim to United States citizenship is based on citizenship status of alleged father, stipulation by examining officer and respondent's counsel that respondent is the child of the alleged citizen father is binding upon the Government notwithstanding the introduction of documentary evidence showing that respondent is not the child of the alleged father. Under such circumstances, the case will be remanded to the special inquiry officer so that the examining officer may withdraw the stipulation upon a showing that it was made inadvertently or under a bona fide mistake of fact and contrary to the true fact.
CHARGES:
Warrant: Act of 1952 — No immigrant visa (all).
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: The special inquiry officer on February 3, 1955, entered an order terminating the above-captioned proceedings insofar as they relate to the respondents R---- B---- L---- and D---- B---- Z----. The respondent R---- B---- Z---- was found to be an alien deportable under section 241 (a) (1) of the Immigration and Nationality Act of 1952. He was granted voluntary departure in lieu of deportation with the proviso that if he failed to depart when required his deportation could be ordered without further notice. The respondent R---- B---- Z---- appealed from this order and exceptions have been filed.
The facts of the case are fully stated in the opinion of the special inquiry officer and will not be restated in their entirety. Briefly, they establish that the respondent, R---- B---- Z----, was born in Mexico on December 29, 1917, and last entered the United States as a citizen at the port of Laredo, Texas, on February 28, 1951. A stipulation, entered in evidence as exhibit G-7, between the examining officer for the Government and the counsel of record for the respondent relates insofar as pertinent to these proceedings as follows:
That R---- B---- L---- was born in the United States of America onPage 632
April 16, 1894; that he is married to P---- Z----, a native and citizen of Mexico, now a legal resident of the United States, and by their marriage they have eight living children — B----, R----, D----, C----, R----, M---- de J----, A----, and A----; R----, M---- de J----, and M---- G---- were all born in the United States but M---- G---- died; that R---- B---- L---- and P---- Z---- were married on October 9, 1941, in Cd. Guerrero, Tamps., Mexico, at which time R---- B---- recognized all of the above-named children as being his through his relations with P---- Z----; and that on February 28, 1951, R---- and D---- were admitted to the United States as United States citizens by the board of special inquiry at Laredo, Texas. (Executed at Zapata, Texas, on March 31, 1953.)
The Government alleges that the respondent, R----, is the illegitimate child of P---- Z---- and was fathered by someone other than R---- B---- L---- whose United States citizenship is conceded. In other words, the Government contends that respondent, R----, did not derive United States citizenship under the provisions of section 1993, Revised Statutes, at the time of his birth.
The issue before us is one of fact and in a deportation case where a claim of citizenship is made the burden is upon the Government to establish by substantial evidence that the deportee is an alien (United States ex rel. Bilokumsky v. Tod,263 U.S. 149, 68 L. Ed. 221). Evidence to sustain the burden of proving alienage under the circumstances here presented must be reasonable, clear and substantial (Carmichael v. Delaney,170 F. (2d) 239 (C.C.A. 9, 1948); United States ex rel. Marcello v.Ahrens, 212 F. (2d) 830 (C.C.A. 5, 1954)).
The special inquiry officer relies primarily on a delayed baptismal certificate introduced in evidence as exhibit G-10 and the testimony of one B---- M---- G---- to establish that the respondent, R----, is an alien The delayed baptismal certificate relates, inter alia, "on the 15th day of the month of July, 1918, I, Parson J---- V----, baptized according to the rites of the sainted church, R----, of this town, born 29th day of December 1917, natural born son of P---- L---- and P---- Z----." The witness, B---- M---- G----, testified in substance that he knew the respondent, R----, by the surname of "M----."
The special inquiry officer's finding of fact (11) that the respondent R---- is the illegitimate son of P---- Z---- and was fathered by someone other than R---- B---- L----, completely ignores the stipulation entered in evidence as exhibit G-7. We are of the opinion that the stipulation is binding upon the special inquiry officer until withdrawn.[fn1] This was not done in the instant case.Page 633
We believe that where a situation arises with regard to a stipulation as is presented by the case before us the proper procedure would be that any party so bound may, prior to final decision, be permitted to withdraw said stipulation in whole or in part by showing to the satisfaction of the special inquiry officer that such stipulation was made inadvertently or under a bona fide mistake of fact contrary to the true fact and that its withdrawal at the time proposed will not unjustly prejudice the rights of all parties to the proceeding. Since the issue before us is one of fact and since the stipulated facts now appear to be controversial we will remand the case to the special inquiry officer to afford him an opportunity to comply with the foregoing.
Order: It is directed that the case be and the same is hereby remanded to the special inquiry officer for further action in accordance with the foregoing opinion.
[fn1] Cf. United States v. Schneiderman, 106 F. Supp. 906; 928; Weilbacher v. J.H. Winchester Co., 197 F. (2d) 303
(C.A. 2, 1952); United States v. Frankfeld, 103 F. Supp. 48
(D.C. Md., 1952).Page 634